/ 



^ 680 
•894 



COUNTING THE ELECTORAL VOTES. 



SPEECH 



HOJ{. HORATIO C. BURCHAUD, 



OF ILLINOIS, 



IN THE 



HOUSE OF EEPRESENTATIVES, 



JANUARY 18, 1877. 







■W^SHIlsrGrTO N". 

1877. 



£7(2,80 



^ 

^ 



^^ SPEECH 



HON. HOIIATIO C. BURCHAED 



The House havin- un.ler consideration the report of the .™"""ttee on the priH- 
loj-.s powers, ai.,1 duties of the House of Kepresentatives in counting the ^ote tor 
Piesitlent and Vice-President of the United States— 
Mr. BURCHARD, of Illinois, said : 

Mr Speaker: I agree with the sentiment expressed by the cha.r- 
m^i of the select committee [Mr. Knott] at the opening of his 
?^marks. A grave and important duty devolves npon the House 
of Repi;senta'tives in regard to the counting of the f^^Joral votes. 
It is now by the resolutions of the majority brought to the con- 
sideration ot- its constitutional powers and the denial of the powers 
of others in ascertaining the result of the election for Presdent 
and Vice-President of the United States. The resolutions of the 
nni ority assert for the House an almost unlimited power lu the 
spo"ition of the questions that may arise upon the reception or 
connT of the electoral votes forwarded to the President of the Senate 
The crentleman from Kentucky in his able argument insists that, as 
the Coiiutution disqualifies certain persons from being electors there- 
fore thrpower is not'only vested in Congress to legis ate "Pon t^, Bub- 
iect, butfas the resolutions which hesustamsunqualihedly assert, the 
power is vested in the House to decide upon the qualifications of the 
electors and also to examine whether a State has properly exercised 
its func ious and duties in the appointment of its electors, a^d reject 
any vote the House sees fit. That involves the great constitutional 
ouestioii whether the Congress, whether the Federal Governuient, has 
Xeri'ht to review the proceedings of a State in the election or ap- 

^thfc^eiitllT/cl^^ 

article^relating to the qualifications of electors who shaU not be ap- 
pSnted electors, therefore this Houseof Co|^gress can reject the votes 
of anv electors it may deem to be disqualified. If that be true, tnen 
the sime must be Jue of other clauses of tl^e Constitution whj^^^ 
impose limitations upon the right of a citizen of a State to exticise 

'^ Article??rovides that Senators and Representatives in Congress 
and all executTve and judicial officers, both of the United States and 
of the several States, shall be bound by oath or affirmation to support 
tL Constitution of the United States. That would give the right to 
Ingres according to the argument of the gentleman, whenever t'j^ 
acts of an officer of a State are presented here before the House, to 
fnTuirelnto tie collateral question whether or not that officer was 
discmalified by reason of not having taken the oath so prescribed. 

Art?c el4 of the amendments to the Constitution provides, among 
other tMngsrtiat no person shall hold an office in a State who, havir g 



previously taken an oakli to support the Constitution of tlie United 
►States, shall have engajjed in insurrection. The doctrine of the gen- 
tleman is that you can question collaterally the authority of an offi- 
cer of a State to perform the functions and duties imposed upon him 
by virtue of the constitution and laws of the State. Now, I deny that 
to be the law. I hold that under the provisions of the Constitution 
itself you are bound to accept the acts of the duly-constituted authori- 
ties of the State when they are verified as re(iuired by the laws of 
the United States and of the State. 

It seems to me that such a position would render futile section 1 of 
article 4 of the Constitution, which provides tliat''full faith and 
credit shall be given in each State to the public acts, records, and 
judicial proceedings of every other State. Aiul the Congress may by 
general laws prescribe the manner in which such acts, records, and 
proceedings shall be approved, and the effect thereof." 

Congress has made that general law in regard to the verification of 
the acts of States and of the officers of the States under State au- 
thority. By the law of 171)2 Congress has provided the manner in 
wliich the act of a State in the aj)pointmeut of elector's shall be veri- 
fied. And I claim that there is no power under the Constitution to 
go behind these acts of a State which are verified under the Consti- 
tution and under the law. 

The words of the Constitution in regard to the counting of the 
electoral votes are few. They are simply that " the President of the 
Senate shall, in the presence of the Senate and House of Representa- 
tives, open all the certificates, and the votes shall then be counted." 

These are the words of the Constitution. So far as they express 
directly what is to be done they are unambiguous. So far as they de- 
clare how and by whom it shall be done they are not clear, and have 
received different interpretations by the wisest statesmen regardless 
of party, from the early days of the Repuldic until the present time. 
The commentators on the Constitution, those great authorities whom 
lawyers refer to, have expressed themselves with care, if not with- 
out hesitancy, as to the meaning of this portion of the Constitution. 

Chancellor Kent, in his learned treatise, says of this claim — 

The Constitution does not expressly declare by whom the votes are to be counted 
and the result declared. In the case of questionable votes and a closely contested 
election this power may be all-important, and I presume, in the absence of all le>4s- 
lative provision on the subject, the President of the Senate counts the votes and 
detemiines the result, and that the two Houses are present only as spectators, to 
witness the fairness and accuracy of the transaction, and to act only if no choice 
be made by the electors. 

The certificates are required to be opened in the presence of both 
Houses and the votes then counted. By whom counted ? If by the 
President of the Senate, the Constitution does not expressly say so. 
If by Congress, why did it not say so ? If the omission was intentional, 
as may be reasonably presumed, the apparent explanation is that it 
was intended to leave the mode ami persons or tribunal to be provided 
by law, if it should seem best to Congress to make such provision. 

I agree with the gentleman from Kentucky that words of an instru- 
ment are to be taken in their ])lain and obvious meaning, but believe 
it to be a well-known principle of legal construction that, when the 
language is uncertain, indefinite, or ambiguous, it is projier and neces- 
sary to seek for the true meaning of the Constitution by inquiring how 
its framers and those who adojited it understood its provisions. 

"The votes shall then be counted." In these few words is summed 
np the whole direction of the Constitution as to how and by trhom 
the count itself is to be made. How shall we ascertain and under- 



stand the meaning of tlie Constitution and what itsframers intended, 
unless, following the language of a learned commentator on the Con- 
stitution, -we seeli for light by inquiring what was the understanding 
of the framers of the Constitution themselves. To the propriety of 
such a course I call the attention of the House. Story on tlie Consti- 
tution, volume 1, section 408, says. I will ask the Clerk to read the 
portion I have marked. 
The Clerk read as follows : 

But after all a most unexceptionable source of collateral interpretation is from 
the practical exposition of the Government itself in its various depaituieuts upon 
particular questions discussed audsettled upon their own ami single merits. These 
approach nearer in their own nature to judicial exposition and for the same gen- 
eral recommendation that belongs to the latter. 

Mr. BUECHARD, of Illinois. Let its refer to the action of the 
framers of the Constitution. If we examine the history of the article 
in the Constitution relating to the Executive, by reference to the 
journal of the convention, we find that it appeared first as a fesolu- 
tion for the appointment of an Executive. Some of these resolutions 
were referred to a committee. Mr. Brearley, on the 4th of Septem- 
ber, from a committee of eleven, who had been considering the sub- 
ject, reported back an article in relation to the Executive that con- 
tains substantially the draught of this article as it appears in the Con- 
stitution at the time it was adopted and as subsequently amended. 
In regard to the count itself, after having in the previous section 
provided how the electors should cast their ballots, and that they 
should make lists, and that these should be transmitted to the seat 
of the General Government directed to the President of the Senate, 
it provided in section 7 that — 

The President of the Senate shall, in that House, open all the certificates, and the 
votes shall be then and there counted. 

On the 6th of September this article came up for consideration be- 
fore the convention ; and it was moved, among other amendments, 
that the words " in the presence of the Senate and House of Repre- 
sentatives" should be inserted after the word "counted;" and this 
was sustained by the vote of six States voting " ay" against four vot- 
ing "no;" so that the clause read — 

The President of the Senate shall, in that House, open all the certificates, and 
the votes shall be then and there counted in the presence of the Senate and House 
of Representatives. 

The limitation here was that they should be counted in the pres- 
ence of the Senate and House of Representatives. I put it to every 
gentleman whether the language here used, together with the amend- 
ment providing that the count should be in the presence of these two 
bodies, does not exclude the idea that they themselves are to make 
the count ? If they were to count it would be necessary that they 
should be present in order to do so ; but if the vote were to be counted 
by the President of the Senate or by some person under his direction 
or by any other authority provided by Congress, then the limitation 
is proper ; and the language means that the counting should be done 
by the President of the Senate, by persons that he should name, or by 
tellers or any commission or any one else expressly authorized by law 
to count in the presence of these two bodies. And there is no vote of 
the convention, no word in the debates, no language anywhere ex- 
pressed by any proposition submitted to the convention that changes 
or*modifies this action of the convention. 

Subsequently, on the 9th of Seiitember, all these matters were re- 
ferred to a committee of revision consisting of five members, who 



6 

were appointed by ballot. This coniniittee consisted of Mr. Jolinson, 
i>lr. Hamilton, Mr. G. Morris, Mr. Madison, and Mr. King. On the 
14th of September, the third day afterward, this committee submit- 
ted the draught of the Constitution, which was adopted and signed. It 
appears that this committee, or the committee of eleven, changed the 
form so as to make the expression more concise and elegant than the 
manner in which the proposition had been presented and adopted. 
But there was no vote of the convention in regard to the change ; 
and there seems to have been no idea on the part of the committee on 
revision, or the convention itself, that they were doing anything to 
change the vote of the convention. 

Now, one day afterward, this committee, whose names I have given, 
introduced a resolution stating their opinion in regard to the count 
of this very vote, which I submit. It is as follows : 

Resolved, That it is tlie opinion of tliia convention that as soon as the conventions 
of nine States shall have ratitied tbis Constitution the United States in Congress 
assembled .should tix a day on which electors should he appointed by the States 
which shall have ratified the same, and a da3- on which the electors should assem- 
ble to vote for the President, and the time and place for commencing proceedings 
under this Constitution. That after such publication, the electors should be ap- 
pointed and the Senators and Representatives elected. That the electors should 
meet on the day tixed for the election of the Pre.sident, and should transmit their 
votes, certitied, signed, sealed, and directed, as the Constitution requires, to the 
Secretary of the United States in Congress assembled ; that the Senators and Eep- 
resentatives should convene at the time and place as.signed ; ihut the Senators should 
appoint a President of the Senate, for the sole piirpose of receiving, opening, and count- 
ing the votes for President ; and that after he shall be chosen, the Congress, together 
with the President, should, without delay, proceed to execute this Constitution. 

That resolution declares it to be the opinion of this convention that 
as soon as the conventions of nine States had ratified, &c., electors 
should be appointed ; that the electors should meet and transmit 
their votes to the Secretary of the United States in Congress a.ssem- 
l>led ; that Senators and Representatives should convene ; that the 
Senators should appoint a President of the Senate for the sole purpose 
of receiving, opening, and counting the votes for President, and that 
after he should be chosen, the Congress, together with the President, 
shoitld without delay proceed to execute this Constitution. That 
resolution was passed by the convention, and accompanies its pro- 
ceedings. 

Now, the propositions submitted to the House, both by the majority 
and the minority, present this question : In the absence of any legis- 
lation, in the abseuce of any direction from the two Houses of Con- 
gress, if they have authority to make such direction, how is the vote 
to be counted ? We say that it is to be counted just as the members 
of the convention expressed their ojiinion that it should be counted. 
They said, when Congress should assemble and the count was to be 
made, it being impossible under the Constitution that, prior to the 
election of a President, any law could be passed by which the count- 
ing could be provided for, it devolved ex necessitate on the President 
of the Senate to receive the certiticates, to open them, and to count 
the vote. That ■\\as the expressed opinion of the framers of the Con- 
stitution m regard to the duty to be performed in the emergency that 
now presents itself to Congress. What shall be done and what pow- 
ers has the House in the execution of its duty in case no law is jiassed 
or no direction given that has the authority to bind the House or 
bind the officer in making tlie count ? That is tlie identical question 
which was passed upon by the convention and is to be passed upon 
by this House in voting ujion the resolutions here presented. 

Now, it cannot be said that tlie reason of this recommendation of 



the convention was because the Constitution at tlie time contem- 
plated would not bein force. The Constitution must have been ratified 
before even the electors could be chosen. The two Houses must 
assemble and a constitutional quorum must be in attendance before 
they could be present at the count. But the Constitution being in 
force, the two Houses having assembled and proceeded in accordance 
with that resolution, the question that presented itself to the framers 
of the Constitution was who, under that instrument, in the absence 
of legislation, is to count the vote ? And they said in unmistakable 
language who, as they understood, was to count and declare the vote ; 
and that was the President of the Senate. 

Now, I desire to refer briefly to the action of Congress on the occa- 
sion of the first and the succeeding counts. I hold that the four counts 
which were conducted prior to the re-adoption of this provision in the 
twelfth article of the amendments— that those four, public, open, 
w^ell-understood exercises of the power by Congress audby the Presi 
dent of the Senate in regard to receiving, opening, counting, and de- 
claring the vote, became, according to a principle of construction 
thoroughly established in the courts, a part of the Constitution itself, 
and must "be held to have been recognized and adopted by the people 
as the true method in re-adopting in the same language this provision. 
What were the proceedings in connection with this first count ? 
Examine them. Did Congress jointly or separately undertake to re- 
ject a single vote. No, in no iustauce. Look at the proceedings at 
the first count, as shown by the Journals. The Senate Journal states : 

April 6, 1789. 
The Senate proceeded by ballot to the choice of a President for the sole purpose 
of opening and counting tiie votes for President of the United States. 
John Laugdon, esq., was elected. 

Ordered, That Mr. Ellsworth ii)form the House of Representatives that a quorum 
of the Senate is formed ; that a President is elected for the sole purpose of opening 
the certificates and counting the votes of the electors of the several States iu the 
choice of a President and Vice-President of the United States ; and that the Sen- 
ate is now ready, in the Senate Chamber, to proceed in the presence of the House 
to discharge that duty ; and that the Senate have appointed one of their members 
to sit at the clerk's table to make a list of the votes as they shall be declared ; sub- 
mitting it to the wisdom of the House to appoint one or more of their members for 
the like purpose. 

On the same day Mr. Ellsworth subsequently reported that he had 
delivered the message. Then 

Mr. Boudinot, from the House of Representatives, communicated the following 
verbal message to the Senate : . , . ^ , , 

" Mr. PiiESiDENT: I am directed by the House of Representatives to inform the 
Senate that the House is ready fortliwith to meet the Senate to attend the opening 
and counting of the votes of the electors of the President and Vice-President of the 
United States." 

And he withdrew. ■.-..,, ^ , ^, 

The Speaker and the House of Representatives attended in the Senate Chamber 
for the purpo.se expressed in the mes.sage delivered by Mr. Ellsworth ; and after 
some time withdrew. . „ ..^ . , , c ^, . , , 

The Senate then proceeded by ballot to the choice of a President ot their body 
pro tempore. John Langdon, esq., was duly elected. 

The President elected for the purpose of counting the votes declared to the Sen- 
ate that the Senate and House of Representatives had met, and that he, in their 
presence, had opened and counted the votes of the electors for President and Vice- 
Presidrai't of the United States, which were as follows. 

In view of these proceedings no wonder a distinguished Senator 
whose political opinions are iu accord with the majority of this House 
felt compelled to acknowledge that — 

Certainly it must be admitted that, looking at that record alone, it would seem as 
if the idea' at the commencement of the Government was that the President of the 
Senate was not only to open but that he was to count the votes. 



The resolution of the House in regard to attending the count was : 

I^eiolved That Mr. Speaker, attended by the Hou.se. do now withdraw to the Sen- 
ate Chamber for the p\irpo,se expres.sed in the mes.sage from the Senate; and that 
Sir Parker and Mr. Hiistcr be appointed on the part of thi.s House to sit at the 
Clerk's table with the member of the Senate and make a list of the votes as the 
same shall bo declared. 

After the count the Honse returned to its own Hall, and Messrs. 
Parker and Heister "delivered in at the Clerk's table a list of the votes 
of the electors of the several States in a choice of a President and 
Vice-President of the United States, as the same were declared by the 
President of the Senate in the presence of the Senate and of the 
Honse; " which was ordered to be entered on the Honse Journal. 

The proceedings in the three succeeding counts were substantially 
the same as at the first. Tellers were appointed by each House "to 
mal-e Usis of the rotes as they shall he declared." 

The notifications of readiness to attend specified the purpose to be 
"to attend the opening and counting the votes for President and Vice- 
President of the United States, as the Constitution provides." 

What was the extent of the power which each House claimed and 
exercised ? It was simply to arrange for a time and place of meet- 
ino- and for appointment of tellers to sit at the Clerk's desk and take 
a list of the votes as thev should be declared, and the making of a 
record of the result. That is all they did. They had a right to do 
that ; it was their duty to do it. Because under the provision of the 
Constitution that, in case no one has a majority of the votes, it shall 
then become the duty of the House and the Senate respectively to 
exercise certain powers conferred upon them by the Constitution, 
the Houses of Congress have the right to be present, and, being pres- 
ent can appoint certain of its members or its clerks or other persons 
"to make lists of the votes as they are declared." They did exer- 
cise that right, and that is the extent to which they went during 
the first four counts of the electoral votes. Go through them, exam- 
ine carefully all the proceedings of Congress, look at the requests for 
the appointment of committees, see the authority under which those 
committees were appointed, the resolutions reported by the commit- 
tees and adopted by the House, and you will find iu no case did it 
exercise or claim to exercise any other power. In fact all that Con- 
t-ress claimed was to designate the place where and the time when 
fhe two Houses should meet and agree that they would be present to 
see the certificates opened and the votes counted. That was the ex- 
tent of all their resolutions. 

Now if there is any doubt as to this action, whether the members 
of the First Congress, or the Second, or Third, or Fourth Congresses 
ri"-ht]y understood the intention of the framers of the Constitution, 
that doubt is removed when we find that there were members of the 
constitutional couvention which framed the very Constitution under 
which we are acting, who were members of the Senate and House of 
Representatives at the time when these votes were first counted. 
In the First Congress there were fifteen members of the constitu- 
tional convention who as members of the Senate or House were 
present at the time when the electoral votes were first counted, 
namely: In the Senate, John Langdon, AVilliam S. Johnson, Oliver 
Ellsworth, William Paterson. Robert ^Morris, George Read, Richard 
Basset, Pierce Butler, and William Few. In the House, Nicholas 
Gilmau, Roger Sherman, George Clymer, Daniel Carroll, James Mad- 
ison, jr., and Abraham Baldwin. Nearly all of them were present at 
the counting of the electoral votes, and tacitly assenteil to the pro- 
ceedings and count. 

In the Second Congress there were twelve members of that consti- 



9 

tutional couveution present, and in the Third aud Fourth sis mem- 
bers of that constitutional convention. Will gentlemen of the pres- 
ent day say that the men who helped frame the Constitution of the 
United States, the very men most prominent in that constitutional 
convention, did not understand what the Constitution meant and did 
not know what they intended in adopting its provisions ? Would 
they not have risen in their places and protested with all the vehe- 
mence they could that the count was not being conducted in accord- 
ance with the provisions of the Constitution ? It seems to me the 
conclusion is irresistible that the manner in which this count was 
then conducted under the resolution of the constitutional convention 
and under the resolutions of Congress immediately afterward is the 
extent of the power that it was deemed, by the members of the con- 
vention itself and by the first Congresses after the adoption of the 
Constitution, this House had the right to exercise. 

It cannot be claimed that because in the first meeting of Congress 
nnder the Constitution, and subsequently until the present time, tellers 
have been appointed, therefore Congress took control of the count. 
What is the duty of a teller ? It is merely the ministerial duty of 
enumerating. In this House no teller has power to say what vote 
shall be counted. That power never has been exercised by a teller. 
If it is believed that a person not authorized to vote is passing between 
the tellers, the question is submitted to the presiding officer or the 
person having charge of the count, and there is no appeal from his 
decision, which is final and peremptory, subject merely to the right 
of the bodies, after he has disposed of the question, to act upon and 
criticise, and, if they deem proper, to censure the officer who makes 
that decision. 

But until the count is concluded and the declaration of the count 
made, the tellers have no authority to stop the proceedings or to in- 
terfere with the count. All that the two Houses authorized to be 
done was that tellers should be appointed who should sit at the Clerk's 
desk and make lists of the votes as they are declared. 

But there is another remarkable circumstance. The committee to 
devise a met hod for notifying the President as to the result of the count, 
and to certify to him his election, prepared a form. There were three 
members of the constitutional convention who were members of the 
committee which drafted that form of notification, namely, Mr. Pat- 
terson, Mr. Johnson, and Mr. Ellsworth. They devised a form which 
was signed by John Laugdon, the president appointed under the res- 
olution to count the vote, in which he certified that he had opened the 
certificates and counted the votes. Congress directed him to certify 
that he had opened the certificates and counted the votes, and he did 
make such a certificate and signed it. John Langdon, who had been a 
member of the constitutional convention himself, certified that /le 
had opened the certificates and counted the votes. The form of the certifi- 
cate, carefully prepared by the committee and reported as a form, 
Avas passed n'pon by the Senate and approved and entered upon the 
Journal, as follows : 

Be it known, that the Senate and House of Kepresentatives of the TJnited States 
of America being convened in the city and State of Xew York, the sixth day ot 
April in the year of our Lord one thousand seven hunched and eighty-nine, the 
underwritten, appointed President of the Senate for the sole purpose ot receiving 
openintr and counting the votes of the electors, did, in the presence of the said 
Senate and House of Representatives, open all the certificates and count all the votes 
of the electors for a President and for a Vice-President; by which it appears that 
Georo-e "Washington, esquire, was unanimously elected, agreeably to the Constitu- 
tion to the office of President of the United States of America. 

Ill testimony whereof I have hereunto set my hand and seal. t a >CT DOV 



10 

Joliii AdaiiiH, too, is supposed to have known something about the 
Ciinstitiitioii. He was Vice-President and presiding otticer to count 
the vote, and he signed a certiticate in 17U7, acting then as Vice-Pres- 
ident and as President of the Senate, that he had opened the certifi- 
cates and counted the votes. 

Thomas Jefie-rson, the lather of tlie democracy as it is claimed — and 
I am astonished that those who claim to be his children should deny 
and go back upon his early teachings in regard to tlie rights of the 
States — Thomas Jeti'ersou in 16U1 signed a certificate in which he 
stated — 

That * * * on the second Wednesday of Ft;bruary, A. D. 1801, the under- 
■written, Tiee-Preisideut of the United States and I'nsidi'iit of the Senate, did, la 
•the presence of the said Senate and House of Reiinsi-ntatives, open all the cer- 
tificates and count all the votes of the electors for President. * » » 

In witness whereof, I have hereunto set my hand and seal this 18th day of Feb- 
ruary, 1801. 

THOMAS JEFFEESOX. 

Did not these men understand what the Constitution meant in re- 
gard to the duty of the President of the Senate ? Did not the peo- 
ple, after these public declarations had been made and had been 
spread upon the Journals of the (Senate and were known to the world — 
did not the people know that the framers of the Constitution had in- 
terpreted its provisions in this manner and that the power in refer- 
ence to counting and certifying the electoral votes had been exercised 
in this way ? Did not they know — did not the people know what had 
been done and claimed ? And will it be said they did not adopt the 
interpretation given by these public men to the provisions of the Con- 
stitution relating to the count of the electoral votes and did not in- 
tend that in any case it should be exercised by the President of the 
Senate ? It seems to me the conviction must be irresistible that, in 
the absence of all legislation or authorized concurrent direction from 
the two legislative bodies required to be present, he must count or 
cause to be counted the electoral votes. 

I do not deny the power of Congress to legislate upon the subject. 
I believe that it is not only the power of Congress, but the duty of 
Congress. It did legislate upon the subject in 1792, but it did not in 
luy judgment go to the extent which Congress ought to have gone in 
providing a method by which the count should be carried on and the 
result ascertained and declared. 

I might fortify my own opinions by reference to the opinions of 
distinguished statesmen who were members of the democratic party, 
■who, before any practical question arose in the last and in prior Con- 
gresses, have avowed their convictions that the President of the Sen- 
ate was the proper person to count the electoral vote, some of them 
even claiming that there is no power in Congress to take it away from 
the President of the Senate. But I do not care to refer to the opin- 
ions of others. I desire that this question should be met and, if it is 
to be discussed in the House, discussed upon its merits as a great con^ 
etitutional question, to be calmly, carefully, and impartially investi- 
gated, each man acting upon the resolutions presented, in view of the 
oatli tliat he takes as a Representative to discharge his duty. In the 
examination that I have made of this question I have endeavored to 
keep that in view, and not to give efiect to my convictions as a par- 
tisan or with a view to the eti'ectitmay have upon the pending count. 

I believe that under the provision of law that gives the power to 
Congr(iss by legislation to carry into effect any power that is con- 
ferred upon the United States, or any Department, or upon Congress, 
under that power there is ample authority to legislate and to direct 



11 

>aow the count bhallbe made. The only qnestion that is now stirring 
the House, that presents itself, is, if we make no provision, what can 
we do ? Can w-e as a House stand back and defiantly assert our right 
to reject any vote ? That is the doctrine that is presented ; that this 
House, with no constitutional power except only that given it by vir- 
tue of the Constitution, has the right to pass, of its own motion, upon 
the action of a State ; that it is not to be governed by the certificates 
of the State officers ; that it is not to be governed by their action ; 
that it cau go behind that; and there are committees of this House 
that insist that they have the right to go behind the action of the 
:State authorities, and to purge every poll in theUnited,States and to 
investigate the proceedings of political parties prior to the election 
and investigate every poll and what was done, and claim that that is 
•within the powers of the Constitution, asserting for this House a 
greater power than the constituent French Assembly asserted for it- 
self during the days of the French revolution. 

I am glad that calmer thoughts and better feelings are prevailing, 
as I think, in regard to the duty of Congress at this time, and that 
this question is to be met in more of a conciliatory spirit, giving to 
«ach side and to each gentleman credit for honesty in their convic- 
tions, feeling that above all things there can be no emergency that 
will arise to justify a resort to strife, to threats, and to violence. 
Such a time ought not and can never come, I believe, in the history 
of this American Government. I have faith enough in republican 
institutions, in the genuine democracy, and in the intelligence of the 
people, to believe that you can trust the people, and I hope their 
Representatives, to respect the forms of law and to permit the peace- 
ful solution of political questions by the proper tribunals; and that 
it is idle, that it is worse than idle, it is wicked, it is unpatriotic, to 
talk, as I am glad to sav but few have talked upon this floor, about 
what may come and what will be done in case of an emergency that 
may, in their opinion, arise. , . -,. 

Imio-ht reply to some remarks that I have heard made in discussion 
here but I do not know whether it is necessary. The distinguished 
o-entleman from New York [Mr. Wood] now acting chairman of the 
Committee of Wavs and Means, in his speech defining the exercise ot 
the powers of the States in the electoral vote, claims that this is a dele- 
gated power, delegated by the Constitution,asif it were apower existing 
fomewhere before the Constitution was adopted. If so, where ? What 
is reaUy meant by " delegated by the Constitution ? Did the Con- 
stitution of itself delegate anything, any more than a deed conveys 
property ? When duly executed by some person, the party signing 
the deed makes the grant and not the deed which evidences it. The 
powers conferred by the Constitution come from the States; that is, 
the people constituting the States. . -. . xi /-, ^-i j.- 

Every power created or delegated contained m the Constitution 
was a power conferred by the people or the States, and did not ema- 
nate from the Constitution itself. Why, the State-rights party m the 
davs of the adoption of the Constitution were so tenacious ot this 
rif^ht that they would not adopt the Constitution unless it should be 
ac^compauied by amendments ; or at least in their conventions adopt- 
in'T the Constitution they submitted the first eleven articles of amend- 
ment, one of which provided that the powers not delegated to the 
United States bv the Constitution, nor prohibited by it to the States, 
are reserved to the States respectively, or to the people. There was 
no power that Congress hehl, no rights which it held by virtue of 
charters or grants from the Crown ; but all power conferred, defined, 



12 

limited, or implied in tlie Constitution was jrranted by the States, 
and the people of the States, and not by the Constitution itself. The 
Constitution -ft-as the written expression of the si'''i"t) ^^d hence it is 
idle to say that this is a power conferred upon the States, unless the 
gentleman means that the people acting through their State conven- 
tions gave to the States as corporate existences the right to appoint 
the electors ; and if that is his meaning, I deny his conclusion that 
the power is therefore limited, for the fifth article of amendments to 
the Constitution does not limit the powers created or delegated to the 
States, but only the powers granted to the Fedei-al Government. 

Now, Mr. Speaker, it appears to me that the doctrine asserted in 
the fifth resolution is utterly subversive of the reserved rights of the 
States. 

There is no redress from this illegal assumption if the result of such 
a partial count is final and conclusive. It places a veto power in the 
House of Representatives upon the choice of the duly appointed 
officers of the State authorized to elect the President and Vice-Presi- 
dent of the United States. It declares that the House, by a bare 
majority, acting upon the opinion, whim, caprice, or partisan bias of 
its members, can invalidate the votes duly given by iiresideutial 
electors and certified according to law. It claims the right to the 
House to question and set aside the appointment as well as the votes 
of electors and in eftect itself appoint the electors. 



Mr. BUCHARD, of Illinois. AVill the gentleman from New York, 
before he presses that motion, allow me to ask unanimous consent 
that an order be made for the printing in the Record of the views 
of the minority of the committee on this subject ? 

Mr. WOOD, of New York. Certainly. 

There was no objection, and the order was made. 

The views of the minority on the privileges, powers, and duties of 
the House in reference to counting the vote are as follows : 

The imdersignecl dissent from the propositions contained in the resolutions re- 
ported by the majority of the committee and question the necessity and propriety 
of presenting them at this time for consideration by the House. 

In our judgment it was not our province, nor witliin the scope of the inquiry vre 
were directed to make, in any manner to investigate and ask the House to pass 
upon the powers of the Presiilent of the Senate. Unless com])eUed to do so in 
order to ascertain the poweis of the House, it seems to be an inipio]iriety to pre- 
sent or pass at this time upon the question of his power. The grave duty devolv- 
ing upon the committee cannot be fully performed Viy framing and reiiorting reso- 
lutions for the consideration of the House without accompanying them with a 
statement of the facts and reasons which have led thereto. We therefore feel im- 
pelled to present our reasons for dissenting from the resolutions of the majority. 

We realize the grave responsibility of taking a false position or leading the 
House to a wrong conclusion. To ascertain and infoiin the House what powers 
and privileges it possesses, and what duties it has to perform in counting the elect- 
oral vote, requires the investigation of great constitutional and legal (£uestious, 
concerning which contrary opinions have been maintained bj- the foremost states- 
men and best jurists of tlie present and preceding generations. Tlie majority, to 
justify the assertion of the extreme and arbitniiy jiower claimed for the House, 
should show that their construction of the Constitution is unmistakably correct. 

The resolution under which the committee act requires them to ascertain and 
report wliut are the privileges, powers, and duties of the HousiMif Kcprosentatives 
in counting the votes for President and Vice-President of the United States. 

NATURE AND EFFECT OF THE ELECTORAL COUNT. 

"What is the count, mentioned in the Constitution, required to be made upon 
opening the electoral certiticates ? 

l>(iis it iiicluilf more than the clerical or ministerial duty of making the arith- 
metical iiiiuputation of the utimber of duly certified and properly authenticated 
electoral votes cast for each candidate ; or does it involve a right of judgment upon 



13 

tlie action of tbe State in appointing tlie electora LolfTin<i prima fade evidence of 
their appointment and transmitting- their votes, as required by the Constitution 
and law 1 

Does the count, which the House attends as a witness or participant, have the 
efl'ect of a final judicial investigation? 

The settleiuent of this question would have aided the committee in considering 
whether the House is authorized or can be authorized, under the Constitution, to 
exercise such judicial power. 

Thepower to decide contested elections other than of its own members is not 
conferred l)y the Constitution upon the House. The election of President and Vice- 
President, in all that relates to the appointment of the electors, was reserved to 
the States. Ko xiower was conferred upon Congress or either Hou.se to judge or 
decide upon their qualifications or invalidate their votes. Such power is clearlj' 
not among the enumerated powers of Congress. 

It has not been conferred upon the two Houses or either of them by any law car- 
rying into execution powers vested by the Constitution in the Government of the 
United States. 

On the contrary, the judicial power of the United States is, by the third article 
of the Con.stinition, vested in the courts- of the United States, and made to extend 
to all casex in law and equity arising under this Constitution, the laws of the United 
States, &c. 

The count upon opening the certificates, made simply by virtue of the directions 
of tlie Constitution, and without statutory provision, is merely a ministerial, and not 
a judicial, act, requiring only the arithmetical enumeration and summing up of the 
votes duly authenticated found in the certificates forwarded by the seveial electoral 
colleges. 

Such count and action taken upon its auTioun cement, and the recognition by the 
other departments of the result declared, doubtless constitute or secure a prima 
facie right to be inaugurated and hold the executive ottice. 

WHO IS UNDER THE CONSTITUTION EMl'OWEKED TO MAKE THIS COUNT ! 

The Constitution does not expres.sly .say. It requires the votes to be counted. 

The first three resolutions of the niajority affirm that the Constitution confers 
u])on the President of the Senate no jjower to count, but does confer such power 
upon the two Houses of Congress. 

In respect to the fir.st and second resolutions of the committee, the under.signed 
are unable, either from an examination of tlie Constitution itself or from the action 
and expressed opinions of its f ramers, to come to the conclusion that the President 
of the Senate has no voice in counting the electoral vote. On the contrary, the 
early practice strongly confirms the opinion of Chancellor Kent. He says: 

" The President of the Senate, on the second "Wednesday in February succeeding 
every meeting of the electors, in the presence of the members of both Houses of 
Congress, opens all the certificates, and the votes are then to be counted. The Con- 
stitution does not expressly declare by whom the votes are to be counted and the 
result declared. In the case of questionable votes and a closely contested election 
this power may be all-important, and I presume, in the absence of all legislative 
provision on the subject, that the President of the Senate counts the votes and de- 
termines the result, and that the two Houses are present only as spectators, to wit- 
ness the faiiness and accuracy of the transaction, and to act only if no choice be 
made by the electors." 

By express provision of the Constitution the President of the Senate is made cus- 
todian of the electoral votes cast. He is enjoined to open the certificates. He is 
not required to deliver them when opened to any other person, officer, or body. 
Opening them in the presence of the two Houses, for aught that appears in the Con- 
stitution to the contrary, they still remain in his custody. The votes when opened 
are then to be counted. If it was intended that the custodian, the officer intrusted 
with the responsibility of receiving, caring for, producing, and opening the certifi- 
cates at tlie place and time where the counting is to be done, should have no au- 
thority to count, no voice in the counting, surely the framers of the Constitution 
■would have so declared. 

VOTES IN CONSTITUTIONAL CON^'ENTION. 

That the constitutional convention intended to confer upon the President of the 
Senate power to count the votes, or cause the count to be made, seems probable, if 
not certain, from the votes and proceedings in the couvention, in the votes upon 
modifications of the original proposition. 

The clause relating to the electoral count in the article on the executive, as re- 
ported by Air. Breaiiy, September 4, 1787. reads : 

"The President of tlie Senate shall, in that House, open all the certificates ; and 
the votes shall be then and there counted." 

The proposition was taken up on the Gth of September, and, by the vote of sis 
States to four, the words "in the presence of the Senate and House of Representa- 
tives " were added after "countedj"so that the clause would read: 



14 

" Till' Pn.siilfiitof tlie Senate shall, in that House, open all the certificates : and 
tlio votes shiiU tlu'H and there be counted, in the lueseuce of the Senate and House 
oi Kejircst iitatives." 

The requirement tliat the counting should be "in the presence of the Senate and 
House " excludes tlie idea tliat tliosc bodies were to count. They couldnot them- 
selves count witliout bcini; pnscnt. and to say that thev should count in their own 
presence would be nieaiiiiijilcMs tautology. 'J'l'iere is no record of any change of this 
provision by a vote of the convention, and tlie committee on revision reported the 
clause as it stands m the Consiitution as a more concise and elej^^ant form of con- 
veying the expressed understandinj^ of the convention. 

CONTEilPOKAXEOUS C0N8TRUCTI0X. 

This is a case in which we may be aided by contemijoraneous constniction. 
Judge Cooley, in his work on Ccmstitutioual LimUati(JUs, jiagi- (l?. says: 

•• C()iitiiii]ioraneou,s constructicm may consi.st simply in tire understanding with 
whi<li the people received it at the time, or in the acta done in puttinc) it in uptration, 
and which necessarily assiiiiic that it is to be construed in a particular way. In 
the lit st case, it can have very little force, because the evidence of the public un- 
derstanding when nothinn hax been done under the provision in question must always 
neces.sanly be vagina and indecisive. Hut when there has been a practical con- 
stniction which hax been arqideseed in for a considerable period, considerations in 
favor of adlu'iing Xa this construction sonu^times present themselves to the courts 
witli a plausil)ility and force which it is not easy to resist. Indeed, where a par- 
ticular construction lias been gemi ally acceptecl as coirect, and especially when 
this has occurred coiitcm]joraii(oiislv with the ado])tion of the Constitiiti'on, and 
by those who had oiii)ortiiiiity to uiidcrstaud the intention of the iiistnimcnt, a 
sti-ong presumption exists that the •■oiistruction rightly interprets the iiit<-iiti<m." 

If, then, any action was taken by th<' fiaineis of the Constitution and those who 
adopted it in regard to this question, that action will throw strong light upon the 
question of the true meaning of the Constitution in this particular. 

ACTION OF THE CONVENTION. 

The framers of the Constimtion in submitting their labors to Congress passed a 
resolution in regard to tliis very question. One week after voting u'poii tlir mode 
ot counting tlie eli-etoial votes, a resolution was reported by the commitlci' on re- 
vi-ion 111 regard to the tirst count of tlie votes underthe Consiitution. It wasaih.i.ted 
and appended to the Coiistitmioii. The convention— 

••lU'xidrni, That it is the o])iiiion of this convention * » - that 'the Sena- 
tors and Kcpresentatives should convene at the time and place as.signed ; that the 
Senators should appoint a I'resideiit of the Senate lor the sole purpose of receivin"- 
0]ieiiing, and counting the vote.s tor President.' " 

xVnd thus in doing an act in reference to putting in operation the Constitution 
they liad Iramed, they used language which intrusted the President of the Senate 
with the counting they had jirovided should he made. 

If they liad understood that, under the Constitution, the President of the Senate 
hail no ],ower to count the votes, surely they would not have declared it to be their 
o]iiiii()ii that, after the ratirtcatiim of that Constitution, the Senate should elect a 
piesidiiigothcer for the purpose of counting as well as receiving and opening the 
votes tor President. f & 

ACTION IN THE FIRST CONGRESS. 

When the First Congress convened underthe Constitution, the Senate oro-anized 
as suggested by the constitutional convention, and "proceeded by ballot to the 
choice of a President for the sole purpose of opening and counting the votes for 
President of the Lmted States." John Langdon was elected. When the Senate 
'_ ordered, that Mr. Ellsworth inform the House of Ke])resentatives " of itsaction 

and that the Senate is now ready, in the Senate Chamber, to proceed, in the pres- 
ence of the House, to discharge the duty" of opening and counting of the votes 
lo this message the House responded that it was " ready forthwith to meet the 
Senate, to attend at the execution of that duty. 

The Joiirnal of the Senate states that " the Speaker and House of Representatives 
attended in the Senate Chamber for the purpose expressed in the message delivered 
by Mr. J<.lIsworth, and, after some time, [after the counting of the votes 1 with- 
drew ; that ' the President elected for the sole purpose of counting the votes 
declared to the Senate that the Senate and House had met, and that he in their 
presence, had opened and counted the votes of the electors for President and Vice- 
PreHiilent ot the United States ; " whereby it appears that George Washington 
esq., %Yis unanimously elected President and John Adams Vice-President of the 
L lilted Mates. 

T'pon the return of theHonse toits own Hall, the Speaker resumed the chair and 
JVIessrs. J ai ker and H.istw " delivered in at the Clerk's table a listof the votes of 
t le electors et the several States in a choice of a President and Vice-President of 
t He Liuted States, as the same were declared by the President of the Senate in the 



15 

presence of the Senate and of the House ; " which was ordered to he entered on the 
House Journal. 

The follow ing memhers of the Federal convention that framed the Constitution 
were members of this First Congress assembled under it : In the Senate, John Lang- 
don, of Is ew Hampshire: William S. Johnson and Oliver Ells wortli. of Connecticut ; 
William Paterson, of Xew Jersey; Robert Morris, of Penn.sylvania ; George Read 
and Richard Basset, of Delaware; Pierce Butler, of South Carolina; and William 
Few, of Georgia. In the House, Nicholas Gilmau, of New Hampshire; Roger 
Sherman, of Connecticut; George Clymer, of Pennsylvania; Daniel Carroll, of 
Maryland; James Madison, jr., of Virginia; and Abraham Baldwin, of Georgia. 
Nearly all of them were present at the counting of the electoral votes, and tacitly 
assented to the proceedings and count and announcement by the President of the 
Senate in that Congress. 

PROCEEDINGS AT THE NEXT THREE SUCCEEDING ELECTIONS IX COUNTING THE ELECT- 
ORAL VOTES. 

1. Appointment of joint committees. 
At each of these counts the Houses passed rosolutiou.s for the appointment of 
joint committees " to ascertain aud report a mode of examining the votes for Presi- 
dent and Vice-President." 

2. Reports of committees and orders of House thereon. 
The committees appointed in 1793 and 1797 severally reported to each of their re- 
spective Houses resolutions, which were adopted, directing the time and place at 
which the two Houses shall assemble, the appointment of one teller on the part of 
the Senate and two on the part of the Hou.se " ?o make lists of the votes as they shall 
he declared ; " that the result shall be delivered to the President of the Senate, who 
shall announce the .state of the vote and the persons elected to the two Houses as- 
sembled as aforesaid ; which shall be deemed a declaration of the persons elected 
President aud Vice-Pre.sident, and, together with a list of the votes, be entered on 
the Journals of the two Houses. 

3. Notifications of readiness to attend the counting. 

At each of these three counts the notificatious of readiness to attend specified 
the purpose, namely, "to attend the opening and countins the votes for President 
aud Vice-President of the United States, as the Constitution provides," aud fol- 
lowed substantially the same form at each count. 

In each count, the President of the Senate followed the joint direction of the two 
Houses and the mode of procedure in the First Congress, opened the certificates, 
delivered them to the tellers, who examined aud ascertained the number of votes, 
presented a list to the Vice-President, which was read, and the result declared by- 
him to the two Houses. 

At these several counts the President of the Senate not only opened the certifi- 
cates, but made all the announcements of the pui-pose of as.seniblage, action taken, 
and results. If there was any presiding officer on the occasion, he was such officer. 
The tellers were only authorized "to make lists of the votes as they shall be de- 
clared ;" the result was delivered by them to the President of the Senate, and he 
announced the state of the vote and'the persons elected. 

At the third count of the electoral votes John Adams, then Vice-President, de- 
clared the result of the election, as he said — 

"In obedience to the Constitution and laws of the United .States and to the com- 
mands of both Houses of Congress, expressed in tlieir resolution " — 
and then delivered to the Secretary of the Senate the votes of the electors, which 
apparently thus far had remained in his custody. 

4. Certificates of election stated the President of Senate had counted the voles. 

The certificates of election issued by the orders of the Senate and House stated 
expressly that the President of the Senate had counted the electoral votes. Upon 
the completion of the first count James Madison, a member of the House of Rep- 
resentatives, was diiected by that body " to inform the Senate that the House have 
agreed that the notifications of the election of the President and Vice-President of 
the United States should be made by such persons, and in such manner, as the Sen- 
ate shall be plea.sed to direct ; " when the Senate adopted and entered on its journal 
the following certificate, prepared under its order, by a committee of its members, 
consisting of Messrs. Patterson. Johnson, and Ellsworth, (who were also members 
of the constitutional convention,) and Mr. Lee : 

"Beit known, that the Senate and House of Representatives of the United States 
of America, being convened in the city and State of New Tork, the sixth day of 
April, in the year of onr Lord one thousand seven hundred and eighty-nine, the 
under2vritten. appointed President of the Senate for the sole purpose of' receiving, 
opening, and counting the votes of the electors, did, in the presence of the said Senate 
and House of Representatives, open all the certificates and count all the votes of the 
electors for a President and for a Vice-President ; by which it appears that George 



16 

AVasliiu.oton, osqnire. was unanimously elected, agrocably to the Constitution, to 
the otlioe of President of the United State,s of America. 

" lu testimony whereof I have hereunto set mv hand and seal. 

"JOHX LAKGDOX." 

John Langdon, who signs this certificate, and who was elected by the Senate its 
I'residfUt tor the dut v which he certifies he had performed, was al.so a di.stinguished 
member of the constitutional convention. In 1797 the Senate again adopted prac- 
tically the same form. It was reported under its order by a committee consisting 
of Messrs. Mason, ITillhou-se, and Sedgwick, and at successive counts, up to and 
including the tenth, the presiding othters of the Senate (respectively .John Lang- 
don, John Adams, Thomas Jeiier.son. Aaron Burr, John Milledge, William H. Cravr- 
ford, and John (xaillard) states, under the order of the Senate, and with the acqui- 
escence of the House, that he — 

"The undei written, Vice-President of the United States and President of the 
Senate, (or I'resident of the Senate pro tempore.) did, in ))resence of said Senate and 
Hou.se of Repre.seutatives, open all the ccrtijicatcs and count nil the votes of thu elect- 
ors for a President and for a Vice-President of the United States." 

If, as the resolutions of the m.ijoiity of this cominittee attirm, the Constitution 
gives the President of the Senate no "authority t(j count the electoral votes, it is 
very remarkable that for a period covering almost half the history thus far of the 
Eepublic, this otHcer did this very thing, and the Senate and House of Represent- 
atives thus repeateilly and formally acknowledged liis right to do this. 

Fifteen members of this constitutional convention were members of the Senate 
or House at the presidential count in 1789 ; twelve at the count in 1793 ; and six at 
each of the counts in 1797 and 1801. 

They participated in the proceedings and were witnesses or actors at these 
count.s. The manner in which the count was conducted, the power asserted and 
exercised on these occasions by the parties required by the Constitution to be pres- 
ent when the act was perlbi nied, are practical expressions of the under.standin^ 
of the trainers of the C'onstitutiou as to the powers and duties of the Senate ana 
House, and of the Presideut of the Senate, in regard to the electoral votes. 

These precedents are nSore ; for. as they were the public and well-known exer- 
cise of a power or duty under an article of the Constitution which was sub.sequently 
amended and re-atlopt'ed by the States, but which in that part of it relating to the 
count it.self remained unchanged, the prior public construction of the power and 
duty u^uder the count became a part of the Constitution itself. 

They show that the President of the Senate exercised powers and duties in re- 
gard to the count of the vote usually exercised by pre.siding officers of parliament- 
ary bodies, was aided by tellers, who made lists of the votes and gave him the foot- 
ings, and that he, in making the count, submitted himself to, or adopted the prior 
concurrent direction of, both Houses. 

At the count of the electoral votes on these occasions, in no case did either House 
assert Jiny power over the votes, or perform any duty other than to appoint tellers 
to make lists of the votes as they should be declared, and to direct the President of 
the Senate to announce the state of the vote and the per-son elected to the two 
Houses assembled. In no ca.se during that period did the tellers attempt to do 
more than make listsof the votes declared by the President of the Senate, or which 
appeared to have been ca.st by the certificates handed to them by him. They per- 
formed only the parliamentary duty of tellers, which is simply to count what the 
presiding officer decides and presents to be counted. A teller does not decide what 
is to be counted. He .simply makes the arithmetical enumeration. In all parlia- 
mentary bodies the presiding officer decides who is to be counted by the tellers in 
ca.se of a division. 

In 1795, on Uebmary 20, the tellers reported the number to the Chair— 64 to 12. 
Mr. Fox having been asked by the speaker whether he was in the house and heard 
the question, answered that he was in the speakei's chamber. Upon which the 
speaker said, " then his vote must be disallowed,'' and the speaker immediately re- 
ported the numbers 64 to 11. (2 Hatsell, 187.) 

The presiding officer decides peremptorily and without debate who are to be 
counted. 

"If any difficulty arises, In point of order, during the division, the speaker must 
take upon himself to decide it peremptorily, for as it cannot be decided by the 
house, and so have a di\'ision upon a division, there is no other mode but to sub- 
mit imjdicitlyto his deteriuination." "Subject, however, to the future censure 
of the House if that determination appears to be irregular or partial." — 2 Hatsell 
Precedents, 198. 
SUIJSEQUEXT POLITICAL ACTION OF THE FRAMERS OF THE CONSTITUTION IN REGARD TO 

INTRUSTING THE COUNTING OF THE VOTES FOR .STATE EXECUTIVE OFFICERS TO THE 

PRE.SIUING OFFICER OF ONE OF THE LEGISLATINT; BRANCHES. 

Soon after the adoption of the Federal Constitution, State conventions were held 
to form constitutions for some of the original and several of the new States apply- 



17 

inn; for admission. Sucli convention was held in Pennsylvania the year followin<r 
theinauguiatK.u of VVashinoton. Two delegates from the State who were mem 
bers of the Federal constitutional convention, James AVilson and Thomas Mifflin 
were members of this State constitutional convention, and signed the constitution 
^^^,''. 'Revised and adopted. Thomas Mifflin was president of the convention 

Ihis State constitution, adopted in 17'JO, required that the returns of every elec- 
aZI.^\ Soyernor shall be sealed up and transmitted to the seat of government, 
directed to the speaker of the senate, who sliaU open and publish them in the pres- 
ence ot the members ot both houses of the Legislature. 

The State of Delaware formed a constitution in 1792. John Dickinson and Rich- 
ard Bassett, rtelegates from the State in the Federal convention, signed the constitu- 
tion framed for the St^te. It provided that the returns of every election for gov- 
^°v 1*1 ' • 'ifli'^'ered to the speaker of the senate, wlio shall open and 

^ T fin,, .f s^™'' '1 the presence of the members of both houses of the Legislature, 
in 1 . !)() the State of Tennessee was formed out of a portion of the territory belono-- 
i?/wf," *"t^\''''^ ^7 ^*"'*'' Vf'olina to the United States. Its constitutionis signell 
by \V lUiam Blount, as president of the convention, who signed the Federal Consti- 
tution as delesate from the State of North Carolina. The constitution of Tennes- 
see required tliat the returns of every election for governor shall be * * * 
directed to thespeaker of the senate, who shall open and publish them in the pres- 
ence of a majority of the members of both houses of the General Assembly 

ihe State constitutions, signed by these experienced statesmen, who had been 
delegates m the I ederal convention, required the president of the State senate not 
only to open, but to pnbhsh, the returns for governor, as had been their expressed 
im(\erstanding of the ,luty of the PresidentSf the United States Senate, and the 
vote^for Prkskle'nt "'^ ' ^"'^^ral Constitntion, in counting the electoral 

It cannot be said that these delegates could not have intended to confer upon one 
person tlie delicate and responsible duty of canvassing the votes for the Chief Ex- 
ecutive when we find that they approved and participated in the framing of con- 
stitutions that authorized a similar presiding officer to open and publish thireturns 
tor a State executive. 

In twenty States of the Union the power to receive, open, and publish the returns 
tor governor m the presence of the house or members of the Legislature is bvlaw 
or constituliional provision, expressly conferred upon the presiding officer of the 
senate, the liouse, or upon them iointly. a ^<=i "^ 

It is the usual mode that has been established in the formation of the new States 
fr/sTe ''™®'^'"^*' '" ^^^*^' ^^^^ ^° ^^^^^' ^'''^^■'^"•'* i^ I^IC- Illinois in 1818, to Colorado 
In the proceedings under tliese State constitutions, where the powers have been 
given to a presiding othcer of one of the houses of the Legislature to open and pub- 
lish the returns in the presence of the Legislatures, the houses have usually attended 
the count simply as witnesses or spectators, without douig more than recordino-the 
proceedings in their journals or appointing tellers, unless additional powers were 
conferred upon them by their State constitutions. 

It IS sufficient to cite as an illustration the proceedings as they appear in the 
legislative journal ot the State of Indiana, in opening and publisliiucr the returns 
for governor in 1857 when the late Speaker of this House was a member of the 
Legislature ot tliat State, and indicated his understanding of the dutv to be per- 
formed under the constitution. .>""'= poi 
The speaker oC the house of representatives of the State of Indiana on the 12th 
of January, 1857, made the following announcement : 

" '^^^\ tl^«, constitution of the State of Indiana requires that the speaker shall 
open and publish the returns of the election of governor and lieutenant-governor in 
the presence of both houses of the General Assembly, and, as the officfal terms of 
the governor and lieutenant-governor elect commence this day, I liave communi- 
cated an invitation t) the senate requesting them to meet the House in this hall 
and in obedience to the. constitution I shall, so soon as the senate appear, proceed 
to publish the returns for governor and lieutenant-governor.'' 
-■^Z- -Kerr otl'ered the following preamble and resolution : 

■'Whereas the .speaker of this house has announced his intention to proceed forth- 
with m this hall to open and publish the election returns for governor and lieuten- 
ant-governor in pursuance of the requisitions of the constitution, and has triven 
the senate notice thereof : o'>"=" 

''Resolved, That the house wiU attend upon the appointment of the speaker in the 
discha,rge of the duties devolved upon them by the constitution, and that seats be 
provided for the members ot the senate on the right of the speaker's seat. 

UesoUed further, That the senate be informed of the same, and that the house is 
now ready to proceed to said business. " 
Which was agreed to. 

The senate then, in pursuance of the invitation of the house, communicated 
2 B 



18 

through the speaker, came Into the hall of the house, preceded bv the president of 
the senate. 

When, 

The joint convention was called to order by the president of the senate. 

The pre.sident then declared: 

" Ge.vti.emkx : We have assembled in joint convention, in accordance with the 
provision of section 4, article 5, of the constitution of the State of Indiana, which 
reads as follows: 'Section 4. In votin;; for j;overnor and lieuteiiant-jrovernor, the 
electors .sliiill desiajnate for whom tlioy vote as jrovernor, and for wlioin as lieuten- 
aiit-;!.'ov(iiior. The returns of every election for governor and lieuteiiaut-jiovernor 
shall be sealed up and transmitted to the seat of government, directed to the 
speaker of the house of representatives, who shall open and publish them in the 
presence of both houses of the General Assembly.' 

" The .speaker of the house of representatives will now proceed to open and pub- 
lish the returns for the election of governor and lieutcnant-govenior of the State 
of Indiana. 

WHAT PRIVILEGES, POWERS, AND DUTIES IX RESPECT TO THE COUNT DEVOLVED UPON 

THE HOUSE. 

First. The Constitution expressly confers upon the House of Representatives the 
power and privilege of being present at the opening by the President of the Senate 
of the electoral certificates, and in case, upon a count of the votes, there is not a 
majoi ity foi- any one candidate, the power and duty are expressly devolved upon the 
House Itself to elect a President from the three highest candidates voted for by the 
electoral colleges. 

The fact th;it no candidate had received a majority of the votes cast by the elect- 
ors is jurisdictional to tlie action of the House. Its existence is essential to a sub- 
sequent valid eleition by the House. 

The assumption by tjie House of the existence of the fact would not make the 
election by the Hou.se legal. The House is not vested bv the Constitution with the 
power to determine the extent of its own jurisdiction, and the courts will and have 
held repeatedly the invalidity of the acts of Congress which transcended the con- 
stitutional powers of the legislative department. 

POWERS OF THE HOUSE. 

As the only express power given by the Constitution to the House in resrard to 
the count itself is to be present with the Senate when the certificates shall be 
opened by the President of the Senate, anv further power must be implied in this 
or some other express power found in the Constitution, or be conferred by law un- 
der the power given to Congress by section 8. article 1, of the Constitution. 

The power to be present at the opening of the certificates, or at the count, if that 
IS included, does not imply a power to direct, control, or make the count. If the 
Constitution required the count to be made by an otticer amenable to, and who.se 
action was subject to revision and reversal bv, the House alone, the latter might 
claim a coii.stitutional power to control or direct the count. 

But if such power exists, it cannot be the sole power of the House, but a power 
to be exercised by the Senate and House, or not at all 

The absurdity of sni)po.sliii: it was the intention that two independent legislative 
bodies, v.-ith different rules ot procedure, lia\T[ng each its own presiding and subor- 
dinate officers, meeting in one hall and simultaneously considering, debating, and 
deciding upon its own action in regard to the reception of each certificate' and 
the counting of each electoral vote found therein, without power to decide in case 
of disagreement between the Houses, is apparent upon a bare statement of the 
proposition. How should order be maintained ? What an anomaly in legislative 
bodie^ ! Two Houses in session and deliberating in the same hall, iinder different 
presiding officers, di.scussing at the same time different or even the same questions. 

The conviction forces itself upon the mind that the proceeding under the count, 
in the absence of the prior exercise of congressional legislative power or of the 
concurrent direction from the two Houses, mu.st be conducted and controUed, in the 
(lispoj^itioii of all ijuesf ions that arise during the count, by the peremptory decision 
ot the pi-esiding othcer charged with the custody of thepapers and necessarily pres- 
ent and by u.sage presiding .at the count. 

Such is the rule in all parliamentary bodies and other assemblages, in which, 
Willie a decision or count is being had, all questions arising in regard thereto are 
umiiiinioiisly, and wifliout debate, vote, or appeal, decided by the presiding officer, 
and his judgirieiit must stand unless, after the count is announced, his ruling is re- 
versed liy the judgment of the assembly itself. 

HAS THE HOUSE ANY POWER TO TAKE PART IN THE COUNT BY VIRTUE OF THE TWENTY- 
SECOND JOINT RULE? 
This rule has never been adopted by the vote of the present House of Represent- 
atives, and its existence as a joint rule governing this Congress has been expressly 



19 

denied by vote of the Senate at present and last session. We attacli the vote of 
the Senate by which, at this session, on an appeal from the decision of the Presi- 
dent pro tempore that the joint rules were not in force, such was sustained. The 
Tote was as follows : 

" The question being taken by yeas and nays, resulted — yeas 50, nays 4 ; as follows : 

"Teas — Messrs. Alcorn, Aili.son, Anthony, Bayard, Blaine, Booth, Boutwell, 
Bruce, Burnside, Cameron of Wisconsin, Chaffe'e, Christiancy, Clayton, Cock- 
rell, Conkling, Conover, Cooper, Cragiu. Dawes, Dennis, Dorsey,' Eaton, Edmunds, 
Frelinghuyseii, Hamilton, Harvey, Hitchcock, Howe, Ingalls, Kernan, Logan, 
McCreery," McDonald, McMillan, Mitchell, Morrill, Morton, Paddock, Patterson, 
Price, Randolph, Sargent, Sherman, Spencer, Teller, Wadleigh, Wallace, West, 
Windom, and Wright— 50. 

"Nays — Messrs. Masey, Merrimon, White, and Withers — 4." 

By the Constitution each House has the power to make rules for its own govern- 
ment, and each can adopt a rule in todidem verbis for the government of such House 
in its intercouise with the other House. It becomes a .joint rule governing both 
Houses while assented to, but of no force under the Constitution to bind the 
House withdrawing its assent. Otheiwise, one House woiild be incapacitated 
from its constitutifinal power to make rules for its own government. 

The House has therefore no power derived from the so-called twenty -second joint 
rule that it can exercise at the approaching presidential count. 

The mode of count under that rule is questionable as toits constitutionality, giv- 
ing, as it does, the power to either House, without consideration or deliberation, or 
even asssignable reason, to reject any electoral vote and at any time transfer the 
election of President and Vice-President from the electors appointed by the States 
to the House of Representatives and to the Senate respectively. 

Practically, the choice of the people for President, expressed at the election, could 
be defeated when a majority of the Representatives of a majority of the States and 
a majority of the members of either House were opposed to the successful candi- 
date. The numerical minority in the House of Representatives, happening to have 
a majority in the State delegations under an election occurring two years prior 
thereto, could, by the action of the Senate, defeat the popular will expressed at the 
later election. 

The impropriety of the rule, its dangerous character and unconstitutional fea- 
tures, have been pointed out and admitted, and by none more clearly and forcibly 
than vSenators and Representatives of both parties who have seen its practical 
workings. 

The pernicious principle of the twenty-second joint rule is again re-asserted by 
the fifth resolution, that any electoral vote may be rejected and excluded from the 
count by the sole action of either House. 

Of this rule, becau.se of this doctrine, a distinguished Senator, Mr. Randolph, 
less than a year ago, said : 

" That rule, now abrogated, is admitted on all sides to have been iniquitous in 
conception, dangerous in existence, and con.stitutionally without warrant." 

We cannot refrain from expressing our alarm at the dangerous and, as it seems 
to us, revolutionary assumption of power in the House to defeat, on its sole motion 
and without law or other provi.sion authorizing such action, the choice made by the 
electors pursuant to the Constitution and law. 

The doctrine would virtually wrest the control of the election of President from 
the States and place it in a single branch of the legislative department when its 
members desired. A power cleaily and expres.sly reserved by the Constitution to 
the States would bj- the exercise of power claimed by the resolution be usurped by 
one department of the General Government. 

Under such a construction of the Constitution the House can defeat the election 
by the electoral colleges, for by excluding votes from tlie count it could prevent 
any candidate from receiving a majority, aud itself, at every election, make the 
choice from the three candidates receiving the highest number of votes. We es- 
pecially deprecate the assertion of such power in either House as a revolutionary 
attempt to arrogate to itself the power to choose an Executive. 

We submit the following proposition, as expressing more accurately the nature 
of the constitutional count, and privileges, powers, alid duties of the House in re- 
lation to it: 

1. That the count required to be made upon opening the certificates is a minis- 
terial duty. 

2. That the so-called twenty-second joint rule is not now in force, so as to require 
the proceedings at the count ito be conducted^under its provisions. 

3. That it is the duty and privilege of the House to attend with the Senate at the 
opening of the certificates transmitted to the President of the Senate by the elect- 
ors appointed by the several States, and to appoint tellers to make lists of and reg- 
ister and compute the votes as declared. 

4. That the House, conjointly with the Senate, has power to examine the votes 



LIBRARY OF CONGRESS 



20 



iipou opouing the certificates, and to agree with the Senate iijiou a mode of doing 
so. 

5. That the privileges, the powers, and the duties of the Honse of Representa^ 
fives, iu the matter of the electoral votes for President and Vice-President, are no 
more and no less than those of the Senate. 

While measures are being considered by joint committees of the two Houses to 
harmonize the diil'erenees and agree ui)oii a satisfactory method of settling all dis- 
puted questions, we believf it to be in.judicir)us, if not uni)atriotic, to attempt, by 
any separate action of the House, to thwart the iiccimipli.shment of the object for 
which the joint coiinnittee was apiiointed; and, in lieu of the resolutions of the 
majority, submit tho folbiwing resolutions : 

liesol'ved. first, Tliat it is llie ])Owur and duty of the House, conjointly with the 
Senate, to provide by law or other constitutional method a mode for fairly and 
truly ascertaining and properly counting tlu^ cli'itoral vote of each State, .so as to 
give eliect to the choice of each State in tlie election of President and Vice-Presi- 
dent. 

Resolved, second, That in the absence of legislative provision on the subject or 
authoritative direction from the Senate and House of Representatives, the Presi- 
dent of the Senate, upon opening the certificates, declares and counts the electoral 
votes for President and Vice-President of the United States. 

HORATIO C. BURCHARD. 
JULITTS H. SEELYE. 
JAMES W. McDTLL. 
WILLIAM LAWREXCE. 



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